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This is the sixth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts. Or in this case the book The Law of Superheroes as well as some olderposts about drafting superheroes.

The impetus for this Retcon came from a letter (that’s right, a real, physical letter!) I received from a doctor in Tennessee. She wrote:

You doubt that there could be a superhero draft, because of the intrinsic unfairness. However, there was a specific doctors’ draft during World War II, Vietnam, etc., which could serve as a model for [conscripting] mutants and resident aliens.

Physicians could be and were drafted despite being middle-aged, 4F (the thought being that if you could get to your office, you could serve), or having already served.

Although I attended medical school soon after the institution of the volunteer army, this was still a source of fearful discussion amongst my male classmates and professors.

The doctor draft was indeed a real thing, and it extended well into peace time. It was expressly held constitutional by the Fifth Circuit in Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954):

Neither is appellant entitled to any relief under the Fifth Amendment because, unlike the Fourteenth Amendment, the Fifth contains no equal protection clause. In order to invoke the Fifth Amendment to secure relief against inequality, appellant must show that the inequality practiced against him has been so flagrant as to amount to a denial of due process, and this he has not done.

The Act extends to all doctors and dentists under the age of 50, and to ‘allied specialist categories’, which by the express terms of the Act includes, but is not limited to, veterinarians, optometrists, pharmacists and osteopaths, imposing upon them all alike the obligation of military service when called by the President under the terms of the Act. In our opinion such a classification satisfies the requirements of the Fifth Amendment.

Bertelsen, 213 F.2d at 277. The court also denied relief under the Thirteenth Amendment prohibition on involuntary servitude, as is typical in draft cases.

However, it is arguable that a draft of superpowered individuals could be such a flagrant inequality as to violate Fifth Amendment due process. This would be especially likely if Congress picked specific superpowered individuals rather than superpowered individuals as a class.

In fairness to us, however, I don’t think we actually concluded that a superhero draft would be unlikely to pass constitutional muster. To quote from The Law of Superheroes:

… Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is not directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to make unusually strong statements of congressional power when faced with this particular issue.

…

But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the nineteenth and early twentieth centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

…

In the case of superheroes, however, it may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, the courts would most likely not object.

So although the doctor draft and the associated cases are a notable gap in our research, I don’t think our correspondent disagrees with us as much as it might appear. Nonetheless, I felt the letter was thoughtful and deserved the full Retcon treatment.

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The paperback edition of our book, The Law of Superheroes, is now available. You can find it at Amazon, Barnes & Noble, Books-a-Million, Indiebound, and other online and retail booksellers. The paperback edition includes a few corrections and updates as well as a new concluding chapter, so if you haven’t picked up a copy of The Law of Superheroes yet, check it out!

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For those of you interested in having your copy of The Law of Superheroes autographed, we are pleased to announce that we are now offering signed bookplates. Send us an email with your address information and any personalization requests, and we’ll mail you a bookplate!

Popehat: “The Law of Superheroes is both entertaining and informative. People who aren’t lawyers or law-geeks will learn something about the law, and lawyers and law-geeks will be thoroughly entertained at the application of familiar principles to comic extravaganzas.”

Mommy’s Busy…Go Ask Daddy!: “I’m far from a lawyer, but these guys bring up such a unique and fresh perspective on superheroes, that I’m instantly sucked in. … a highly entertaining read. Not only will you actually learn some legal jargon and get a better grasp on the legal system as a whole, but these guys legitimately try to answer all of these hypothetical questions.”

Amazon Reviews: “The Law of Superheroes is a fun, quirky book with great crossover potential. The authors approach both topics from an introductory perspective, so that the reader need not have much preexisting knowledge of either to follow along. A must for anyone who enjoys pop culture analysis, Smart Pop style.”

LibraryThing: “a great way to explain real law in a fun and entertaining manner.”

GoodReads: “I came out of this book with a better understanding of the law, which surprised and delighted me, honestly. They even say that they wanted to make the law a bit more interesting, and they succeeded.”

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Alert reader Kris wrote in with a note about one of the examples in the book:

Wonder Woman didn’t kill Maxwell Lord to save Batman. At that point, Superman had already attacked and nearly killed Batman, who was then convalescing back in Justice League HQ. Lord was compelling Superman to kill Wonder Woman as this point, by making Supes believe she was Doomsday in the middle of killing Lois Lane. When she managed to track down Lord she tied him up with her golden lasso and then commanded Lord to release Supes, which he did, but then Lord told her that he still had control, and once she let Lord loose from the lasso it would just start all over again. … This was in Wonder Woman #219, by Greg Rucka. Infinite Crisis #1 had a one-panel flashback to this issue.

In fact, we’re both correct. Our version of the story comes from Manhunter, in which the story is also told via flashbacks and video footage. In that book, Superman is shown choking Batman saying “I’ll kill you Doomsday!”. Superman, who is relating the story, says “It was actually Batman who I was fighting, and I almost killed him. If it wasn’t for Wonder Woman tracing it back to Max, I would still be under his thrall.” It’s never made clear that Wonder Woman killed Max in a separate incident from the attack on Batman.

So in some sense we can blame the continuity editing at DC, but nonetheless we should have checked the canonical version of the story in Wonder Woman.

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I’m happy to announce that I will be giving a talk about Law and the Multiverse and our upcoming book, The Law of Superheroes, at my undergraduate alma mater, Hendrix College, on November 13 at 4:10pm at Mills Library. The event is open to the public and will be followed by a book signing.

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We are excited to announce The Law of Superheroes, a new book inspired by Law and the Multiverse! The book features thirteen chapters covering a wide range of legal topics, including new and updated material from the blog as well as dozens of comic book illustrations. The Law of Superheroes will be published on October 11, 2012 by Gotham Books, a division of Penguin. You can pre-order copies from any of these booksellers:

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On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.